Thomas, S/O. Ouseph vs The Sub Registrar on 28 January, 2025

[Cites 6, Cited by 0]

Kerala High Court

Thomas, S/O. Ouseph vs The Sub Registrar on 28 January, 2025

The petitioner is a priest serving abroad who filed this writ petition through his power of attorney holder under Article 226 of the Constitution of India, seeking a writ of certiorari [sic: writ of mandamus] directing the 1st respondent Sub Registrar, Kattappana, to register Ext.P10 correction deed executed by the learned Munsiff of Kattappana, as ordered in O.S.No.183 of 2020 on the file of the Munsiff Court, Kattappana.

2. The predecessor in interest of the petitioner, namely, one Kurian Alexander of Thiruvalla had applied for patta for an extent of 4 acres of land in survey No.288 of Vandanmedu Village of Udumbanchola Taluk in the year 1965. After complying with the formalities for the issuance of patta, he was issued with Ext.P1 patta dated 21.12.1976. As per the application submitted by Kurian Alexander, he sought patta for 2 acres 90 cents in survey No.288/10 and 64 cents in survey No.288/11 of Vandanmedu Village. Ext.P2 Thandaper Account maintained in the Village office 4 WP(C) NO. 32362 OF 2024 2025:KER:6368 also shows the said extent of property in different survey numbers in the name of Kurian Alexander. Thereafter, mutation was effected in his name and he paid basic tax evidencing which Ext.P3 receipt dated 02.02.1979 was also issued by the Village Officer. On 27.04.1978, as per Ext.P4 sale deed, the father of the petitioner M.O Joseph purchased 3.34 acres of land out of the above said 3.54 acres of land covered by Ext P1 patta from Kurian Alexander. One Chackochan, who is the brother of the petitioner had purchased the remaining 20 cents of property from the legal heirs of Kurian Alexander by virtue of a sale deed bearing No.562/2004 of SRO Kattappana dated 26.02.2004. When the petitioner went to the Village Office, Anakkara, which was bifurcated from Vandanmedu Village to pay land tax in respect of the said 3 acres and 34 cents of his father, the Village Officer refused to accept the tax stating that the father of the petitioner never held 64 cents of land in survey No.288/11. The Village Officer pointed out the absence of survey No.288/11 in Ext.P1 patta. To correct the said clerical error, the petitioner moved before the 2nd respondent and as per Ext.P5 order dated 5 WP(C) NO. 32362 OF 2024 2025:KER:6368 28.02.2019, the 2nd respondent directed to add survey No.288/11 in Ext.P1 patta and connected documents in the Village records. After correcting the revenue records, the petitioner paid basic tax and was issued with Ext.P6 receipt. Thereafter, the petitioner filed O.S. No.183 of 2020 before the Munsiff Court, Kattapana, against the legal heirs of the vendor, Kurian Alexander to execute a correction deed in respect of the survey number of the property covered by Ext.P4. As per Ext.P8 judgment dated 30.07.2021, the learned Munsiff directed the legal heirs of Kurian Alexander to execute the correction deed by adding survey No.288/11 also in Ext.P4. Since they did not comply with the direction in the judgment, the petitioner filed Ext.P9 E.P.No.22 of 2021 before the Munsiff Court, Kattapana. In the execution petition, the learned Munsiff executed Ext.P10 correction deed and sent it for registration to the office of the 1 st respondent Sub Registrar, Kattappana. But the 1st respondent refused to register Ext.P10 correction deed stating that it does not contain resurvey number, block number, sub division number etc. Hence the petitioner approached this Court with the above writ petition. 6

WP(C) NO. 32362 OF 2024 2025:KER:6368

3. The 2nd respondent filed a counter affidavit admitting the derivation of title pleaded in the writ petition. However, it is further stated in the counter affidavit that the new survey number of old survey No.288/10 is 389/2 and that of old survey No.280/11 is 389/1. An extent of 0.9180 hectares in resurvey No.389/2 has been recorded in the name of Ouseph, the father of the petitioner, vide resurvey BTR TP 191. An extent of 0.2140 hectares in resurvey No.389/1 is recorded as Government land. Taluk surveyor was deputed to inspect the land with necessary records and as per the survey report, only 1.1360 hectares of land in survey No.288/10 and 0.0376 hectares of land in survey No.288/11 are possessed by the petitioner. It is further stated in the counter affidavit that even if the Munsiff Court executed the correction deed, the Sub Registrar could not register it since it bears old survey number alone. The respondent has no objection for resurveying the land, provided the petitioner consents to adjust the extent based on possession and documentary right over the patta land.

4. To the counter affidavit, the petitioner filed a reply 7 WP(C) NO. 32362 OF 2024 2025:KER:6368 affidavit producing with Ext.P11 basic tax receipt dated 07.08.2024 and Ext.P12 reply dated 02.12.2024 issued from the Village Office, Anakkara, contending that it is clear from those documents that resurvey has not been completed in the petitioner's property.

5. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.

6. The issue that has to be considered in this writ petition is as to whether a direction under Article 226 of Constitution of India can be issued to the 1st respondent Sub Registrar to register Ext.P10 correction deed executed by the learned Munsiff, Kattappana without insisting the new survey number, block number, sub division number etc., in the document?.

7. The learned counsel for the petitioner submitted that the respondents have not challenged the possession of the petitioner's father of the property covered in Ext.P4 sale deed executed by Kurian Alexander, on the strength of Ext.P1 patta issued by the 3rd respondent Tahsildar (LA), Peermade. As per Ext.P5 order of the 2nd respondent, the survey number of the property was 8 WP(C) NO. 32362 OF 2024 2025:KER:6368 corrected in Ext.P1 patta. Mutation was also effected in respect of the property in two different survey numbers as evident from Ext.P2 thandaper account. As per Ext.P8 judgment of the Munsiff Court, Kattapana, the legal heirs of the vendor Kurian Alexander were directed to execute a correction deed in respect of Ext.P4 sale deed by adding the omitted survey number 288/11 also. Since they failed to execute the same, the learned Munsiff executed Ext.P10 correction deed. From Exts.P11 basic tax receipt and Ext.P12 reply received under the Right to Information Act, it is evident that the resurvey is not completed in the property of the petitioner. Hence, the 1st respondent cannot insist on the inclusion of resurvey number etc, in the correction deed.

8. On the other hand, the learned Senior Government Pleader argued that in order to register a correction deed, much less a sale deed, it is necessary to describe the property by stating the extent lying in different survey numbers separately by giving boundary descriptions etc. For the said purpose, it is necessary to conduct a resurvey of property possessed by the father of the petitioner. Therefore, it is not possible for the 1st respondent to 9 WP(C) NO. 32362 OF 2024 2025:KER:6368 register the document even if Ext.P10 was executed by the learned Munsiff without considering these aspects.

9. According to the petitioner, the predecessor in interest of the property purchased by his father was in possession of 2.90 acres in survey No.288/10 and 64 cents in survey No.288/11 of Vandanmedu Village. By virtue of the Ext.P5 order, the 2 nd respondent has incorporated survey No.288/11 also in Ext.P1 patta issued in favour of the predecessor in interest of the petitioner's father. However, the respondents are disputing the total extent of property possessed by the vendor and thereafter by the father of the petitioner. According to the respondents, the resurvey of the property is necessary to demarcate them separately.

10. The petitioner approached the Munsiff Court and obtained Ext.P8 judgment against the legal heirs of the predecessor in interest of the property. From the perusal of the said judgment, it could be seen that the defendants therein did not choose to contest the suit, and hence an ex parte decree was granted in favour of the petitioner. Pursuant to Ext.P8, the 10 WP(C) NO. 32362 OF 2024 2025:KER:6368 learned Munsiff executed Ext.P10 correction deed, since the defendants were not ready to execute the document as directed in Ext.P10 judgment. From Ext.P12 reply issued by the State Public Information Officer of Village Office, Anakkara, it could be gathered that resurvey was not held in the property of the petitioner situated in survey No.288/10. Therefore, there is a point in the contention of the petitioner that it is not possible to show the new survey numbers in the Ext.P10 correction deed. However, it is clear from Ext.P10 that the said document is executed without separately showing the extent of the property situated in each survey number. Similarly, the other details of the property, such as block number, boundaries, etc., are also not separately shown in Ext.P10 so as to identify the properties in different survey numbers.

11. The Registration Act, 1908, and the Kerala Registration Rules formed under Section 69(2) of the Registration Act, 1908, deals with the manner in which a property is to be described in a document submitted for registration. Section 21 of the Registration Act reads thus:

WP(C) NO. 32362 OF 2024 2025:KER:6368 "21. Description of property and maps or plans.--(1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. (2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.

(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.

(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.

12. As per Section 69(1) of the Registration Act, the Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government and shall have the power to make Rules consistent 12 WP(C) NO. 32362 OF 2024 2025:KER:6368 with the Act for various purposes under the Act mentioned in that Section. The Rules so made will come into effect on its approval by the Government and publication in the official gazette as per Section 69(2) of the Registration Act. Rule 23 of the Registration Rules (Kerala) is the corresponding Rule to Section 21 of the Act. The said Rule reads thus:

"23. The description of the "territorial division" required by Section 21 of the Act shall, as far as practicable, give the following particulars:--

(a) The Registration District,

(b) The Registration Sub-District,

(c) The Taluk and firka or proprietary estate,

(d) The amsom, village or pakuthy, desom, muri, kara or chery, hamlet or suburban, in which the property referred to in a registerable document is situated,

(e) The survey and sub-division number or numbers,

(f) The full description of the land, the boundary, the nature and tenure of the land concerned and the extent (of each survey of sub-division number of which the property is comprised in acres and cents and also in Hectares and Ares), both in figures and words:

Provided that after the transition period of three years 13 WP(C) NO. 32362 OF 2024 2025:KER:6368 commencing 1st October, 1962, it shall not be necessary to express the extent in acres and cents.

Note.-- The rules shall have the same meaning and application to "desoms" in Malabar area as they have to villages in Travancore-Cochin area and shall be read and construed as if the words "desom" or "desoms" were used for the words "village" or "villages", respectively wherever they occur in these rules".

13. A reading of Section 21 of the Registration Act, 1908, as well as Rule 23 of the Registration Rules (Kerala) would make it clear that the description of land in a document to be registered shall be made in such a way so as to identify the property separately. The full description of the property including the extent in different survey numbers and other particulars such as registration district, registration sub registry, Taluk, amsom, Village , survey number, sub division number, boundaries, nature of the land, etc., have to be shown in the description of the property to accept the document for registration.

14. According to the appellant, the 1st respondent refused to register Ext.P10 document executed by the learned Munsiff stating that it does not contain a new survey number of the 14 WP(C) NO. 32362 OF 2024 2025:KER:6368 property. It is true that in Ext.P12 document, it is stated that the resurvey of the property was not held in survey No.288/10. Hence there may be difficulty in showing the new survey number of the property in Ext.P10. But as said above, the perusal of Ext.P10 document would show that it does not contain the extent and other particulars of the property situated in survey No.288/10 and 288/11 separately, which is mandatory as per Section 21 of the Registration Act, 1908 and Rule 23 of the Registration Rules (Kerala). Therefore, Ext.P10 document executed by the learned Munisff cannot be said as one satisfying the description of property as mandated under the Registration Act and Rules thereunder.

15. If the 1st respondent refuses to register a lawful document executed by a Court of competent jurisdiction, definitely the petitioner can very well approach the said Court itself to get it registered by giving necessary directions. If the 1st respondent raised legally sustainable objections against the registration of the document, which ought to have been considered by the Court before executing the document, it is the duty of the petitioner to overcome the objections by taking necessary steps. Without 15 WP(C) NO. 32362 OF 2024 2025:KER:6368 resorting to said legal remedy, the petitioner approached this Court with the above writ petition.

Having considered the pleadings and materials on record, and the submissions made at the Bar, we are of the opinion that the remedy of the petitioner to get Ext.P10 correction deed executed is through the competent Civil Court and not through a writ petition as of above. Therefore, the writ petition fails.

In the result, the writ petition stands dismissed.

Sd/-

ANIL K.NARENDRAN, JUDGE Sd/-



                              MURALEE KRISHNA S., JUDGE
sks
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WP(C) NO. 32362 OF 2024                                2025:KER:6368


                    APPENDIX OF WP(C) 32362/2024

PETITIONER EXHIBITS

Exhibit-P 1               TRUE COPY OF PATTA, DATED 21-12-76, ISSUED
                          BY THE 3RD RESPONDENT

Exhibit -P2               TRUE COPY OF THE TANDAPER ACCOUNT 4260,
                          MAINTAINED BY THE VILLAGE OFFICER,
                          VANDANMEDU

Exhibit -P3               TRUE COPY OF THE LAND TAX RECEIPT DATED
                          2/2/1979

Exhibit-P 4               TRUE COPY OF SALE DEED, NO.1635/78, DATED
                          27-4-1978, OF SRO KATTAPPANA

Exhibit-P 5               TRUE COPY OF THE ORDER OF 2ND RESPONDENT
                          DATED 28/2/2019

Exhibit-P6                TRUE COPY OF LAND TAX RECEIPT , DATED
                          7/8/2024

Exhibit--P 7              TRUE COPY OF PLAINT IN O.S.183/2020, BEFORE
                          THE HON'BLE MUNISIFF COURT KATTAPPANA

Exhibit -P8               TRUE COPY OF JUDGMENT DATED, 30-7-21, IN
                          O.S.183/2020, BEFORE THE HON'BLE MUNISIFF
                          COURT KATTAPPANA

Exhibit-P9                TRUE COPY OF E.P.NO.288/21 IN O.S.183/2020,

BEFORE THE HON'BLE MUNISIFF COURT KATTAPPNA Exhibit -P10 TRUE COPY OF THE SALE DEED EXECUTED BY THE HON'BLE MUNISIFFS COURT KATTAPPANA Exhibit -P11 True copy of the land Tax receipt dated 7- 8-2024 Exhibit-P12 True copy of the reply under RI Act dated 2-12-2024

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